Court File and Parties

Court File No.: 14-00946-02

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christian Harris

Before: Justice Robert S. Gee

Heard on: May 4 and 5, 2015

Reasons for Judgment Released: June 8, 2015

Counsel:

• G. Orsini, for the Crown
• D. Gulka, for the Accused

Introduction

[1] During the night of April 11, 2014 a barn located at 64 Brant Road, in a rural part of Brant County, caught fire. The barn was approximately 100 years old and constructed, as most were at the time, primarily of wood. Given this, by the time the fire responders arrived, the barn was fully engulfed and as the saying goes, all they were able to save was the foundation.

[2] The fire itself, as it turns out, was deliberately set. We know this because one of the persons who set the fire has admitted as much and pled guilty to arson. In this sense this case isn't a whodunit. It may be more accurately described as a "who-else-dunit."

[3] The admitted arsonist is Tim Norris. He's the person who pled guilty to setting the fire and is currently serving a sentence for it.

[4] The other alleged arsonist is the accused in this matter, Christian Harris. He is facing two charges as a result of the fire, those being: arson and break, enter and commit arson.

[5] The Crown proceeded by indictment on these charges. Mr. Harris pled not guilty and during his trial, denied any role in setting the fire. Mr. Norris was a witness at trial and he testified that he and Mr. Harris together set the fire.

[6] Given both these charges relate to the same fire setting incident, if I find the accused is guilty of the charges, the Crown only seeks a conviction to be registered on the break and enter and commit arson charge.

[7] For the reasons that follow, I find that the Crown has proven the accused's guilt in this matter.

Facts

[8] Other than what took place inside the barn when the fire was set, the facts are not seriously in dispute.

[9] On the night of the fire Mr. Norris, Mr. Harris and two others, Jack Hodgson and Robert Daigle, were cruising around in Mr. Norris' car. The cruise commenced in Brantford and headed down Highway 403 to Hamilton.

[10] There the four spent some time hanging out at a park. Marijuana was present and consumed by at least some in the group. Mr. Norris claims alcohol was also being consumed by all, but Mr. Harris and Hodgson, who were present and testified, denied any alcohol consumption by anyone. I'm inclined to believe Mr. Norris on this point but not much really turns on it as no one is alleging anyone's testimony is suspect or unreliable due to the consumption of alcohol or drugs, nor is there any evidence that such was the case.

[11] On the return trip from Hamilton to Brantford, Mr. Norris suggested they should drive out to the barn in question. He knew of this barn due to some dealings he had with it through his employment. He first suggested they go there to just hang out but later, while enroute, suggested they should burn it. According to Mr. Norris, the two back seat passengers, Mr. Hodgson and Daigle thought this was a bad idea, while Mr. Harris agreed to take part.

[12] Upon arrival they parked in a semi-secluded spot some distance from the barn. Mr. Hodgson and Daigle stayed at the car while Mr. Norris and Harris left the other two. They snuck around the side of the barn making sure to stay close to the outer wall to avoid a motion detector that would have triggered an outside light and potentially alerted residents at a nearby house. They entered the barn through a closed, but unlocked door. Once inside a light was turned on and Mr. Norris told Mr. Harris they should start the fire in a small room to the left where there was an old roll of carpet. Mr. Norris then left that area to retrieve some wood skids and when he returned, Mr. Harris had the fire started in the carpet. The skids were thrown on top of the carpet and as the fire began to grow, Mr. Norris and Harris fled the barn.

[13] Mr. Norris and Harris ran back to the car and the four of them beat a hasty retreat. Mr. Norris wanted to see their handiwork so he drove to a few places trying to find an unobstructed view of the fire. The first couple of places he drove didn't give the front row view he sought so eventually he headed back down Brant Road to the vicinity of the barn. By then other cars were lining up to view the fire, the firefighters had arrived and shortly thereafter OPP cruisers started to arrive which finally convinced Mr. Norris it was time to leave. He then drove back to Brantford where the four eventually went their separate ways.

[14] These facts come primarily from the testimony of Mr. Norris. I've taken the facts from his testimony because, after hearing all the witnesses, I find it's his version that I believe. Mr. Harris' testimony I do not believe, nor do I find it raises a reasonable doubt. Some of his testimony was consistent with Mr. Norris', but it differed on the salient aspects, especially concerning the events that took place inside the barn, when he and Mr. Norris were alone. Given this, I've approached my analysis of the evidence as suggested by the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 742.

Assessment of the Evidence

[15] In a case like this, the court in W.D. suggests I should first assess the evidence of Mr. Harris because if I believe him or if his evidence leaves me with a reasonable doubt; I should acquit him.

[16] What I can say after having done so is that I do not believe him, nor does his evidence leave me with a reasonable doubt.

[17] The reason I do not believe Mr. Harris is, simply put, every time he has been asked about what happened the night the barn burned and what his role was in it, his story changes.

[18] On April 24, 2014 he gave an interview to Officer Kenneth Johnston of the Brant County OPP. The interview was about an hour and 27 minutes long. By the time the interview finished, Mr. Harris had given three different versions of the events that transpired the night the barn burned.

[19] The first version he gave had, upon their return from the cruise to Hamilton, Mr. Norris and the others dropping him off at a gas station in Brantford while the rest continued on their way. He said he asked to be dropped off because Mr. Norris was talking about going and burning the barn.

[20] From there, according to Mr. Harris, he walked home, got into an argument with his girlfriend, and left and walked to Mr. Hodgson's place, where the two of them played video games until about 6:00 a.m.

[21] This version was soon abandoned when Officer Johnston pointed out to Mr. Harris that his story could be easily verified; or conversely proven false, by checking the surveillance video at the gas station.

[22] In the next version, Mr. Harris admits they all attended at the barn. In this version though, the purpose for attending was to have a bonfire. Mr. Norris said they would put it out with water he had in the back of the car or they would throw dirt on it to make sure it was out. Upon arrival, Mr. Norris gathered some paper and bits of wood and started the bonfire outside the barn near a silo. While doing so, Mr. Harris made sure to move away any rocks that might get hot for fear they would start any of the nearby structures on fire.

[23] After about five minutes the bonfire was already out but Mr. Norris had disappeared. Mr. Harris became concerned and went to look for him by searching around the outside of the barn. At some point Mr. Norris came out and was jumping up and down urging them to leave. It turns out he was in such a hurry to leave because he had gone in the barn by himself and set fire to it. Once in the car, Mr. Norris drove to several spots to try to get views of the fire.

[24] Next came version three. In this version Mr. Harris admits that while in Hamilton and during their cruise, Mr. Norris discussed attending at the barn in order to burn it. Once at the barn Mr. Norris and Harris snuck around the side of the barn being careful not to set off the motion sensor light and entered. It was dark inside and Mr. Norris turned on the light only for a few seconds before turning it off. They both then used their lighters to help them see. Mr. Norris attempted to light on fire a large advertising type banner from Home Depot. It wouldn't burn and Mr. Harris advised him it was because of the polyurethane material it was made from.

[25] Mr. Norris then began to pile some wood and carpet in a corner. He then ripped up a large piece of carpet, threw it on top of the pile and lit it with his lighter. They then fled the barn. Once they were outside they again were careful not to trigger the light, made their way back to the car where their friends were waiting and took off. Again, once out on the road they drove around looking for a place to view the fire.

[26] Then in his testimony at trial, more versions emerged. When asked in his testimony in-chief what was said about where they were going while they were on their way back from Hamilton, he said Mr. Norris mentioned going to a barn to hang out. When they got to the barn and parked, Mr. Harris said he likes to explore things so he and Mr. Norris decided to enter the barn to explore, or so he thought.

[27] Once inside the light was turned on only briefly and once off it was too dark to see. He started to walk a bit in the dark and bumped into Mr. Norris who at this point was trying to light the large Home Depot banner on fire. Mr. Harris told him to stop and he did. Next, Mr. Norris began stacking wood in a corner. He then took a piece of carpet and lit it on fire.

[28] Mr. Harris claimed at this point he used his sweater and hand and put it out. Once out he told Mr. Norris they were just there for some fun and they should go. Mr. Norris told him to lead the way. Mr. Norris came running out shortly after saying let's go because as it turned out he had again set the fire.

[29] Also, in cross-examination there was one further, but significant alteration to his in-chief version. When pressed, Mr. Harris admitted that during the drive from Hamilton, Mr. Norris did in fact discuss burning the barn.

[30] Mr. Harris did provide an explanation for why he lied to the police in his interview. His explanation though did not make much sense to me. He stated he was afraid if he admitted to being in the barn that night, Officer Johnston would not have released him on a promise to appear. It would seem to me though that telling the police bald face lies that can be easily and quickly proven to be such, is a much more likely way of jeopardizing a release on a promise to appear than either telling the truth or remaining silent would be.

[31] Given the constant shifting versions put forth by Mr. Harris about what took place that night, and the fact that even while testifying he would attempt to deny any conversation took place about burning the barn before they arrived, even though he admitted as much in his interview with Officer Johnston, I am unable to believe any of his testimony, and am not left in a state of doubt by it.

[32] However, rejecting Mr. Harris' evidence does not end the analysis. I still have to ask myself whether, based on the evidence I do accept, if I am satisfied beyond a reasonable doubt of Mr. Harris' guilt.

[33] That turns on the evidence of Mr. Norris as he was the only other person inside the barn when the fire started.

[34] I found Mr. Norris to be a very compelling witness. He testified in a clear and direct manner. His testimony was logical and consistent throughout. I did not detect any attempts on his part to embellish or downplay any aspect of his actions or the actions of any of the others that night. He candidly admitted to things that were unflattering and portrayed him in a negative light.

[35] For instance, he admitted to the consumption of alcohol and marijuana that night. He also admitted that it was his idea to burn the barn. He drove the four of them there that night, and drove around after looking for a place to watch the barn burn.

[36] He testified when he entered the barn he chose where to start the fire and that he gathered skids into a pile to ensure the fire grew. He testified that the person who actually lit the carpet that started the fire was Mr. Harris; however he also stated if Mr. Harris had not lit it, he would have.

[37] In a situation such as this I am on guard for any indication that there may be some animosity Mr. Norris may have felt toward Mr. Harris. In this case there was no evidence there was any. They were at best casual acquaintances. They met a few weeks before through their mutual friend Mr. Hodgson. Neither Mr. Norris nor Mr. Harris testified to any bad blood between the two of them.

[38] If there was any animosity between Mr. Norris and any of the others there that night it would have been with Mr. Hodgson. Apparently about a week following the arson of the barn, Mr. Norris set fire to Mr. Hodgson's house. He has pled guilty to that arson and is serving a sentence for it too. Notwithstanding this, Mr. Norris testified Mr. Hodgson thought burning the barn was a bad idea and stayed at the car while it took place.

[39] Also in cases where one accused testifies against another accused, concerns that the accused who is pointing the finger at the other is only doing so to protect his own self-interest can come into play. However, in this case, again, there was no hint that these issues were present. By the time Mr. Norris testified, he had already pled guilty and was sentenced. There was nothing to indicate that his sentence or any agreement with the Crown on the resolution of his charges was dependant on his testifying against Mr. Harris.

[40] In the end, I believe Mr. Norris. He came across as a person who is doing what he can to turn his life around. He is taking advantage of his time in custody by taking programs and counselling to address his alcohol and substance abuse problems. He is also seeing other counsellors and taking other courses to address other problematic areas of his life. I found when he testified he was giving an honest account, to the best of his ability, of what transpired the night the barn burned, and I accept his evidence.

[41] Of the four who were present the night of the fire the only other one to testify was Mr. Hodgson. Since he was not inside the barn when the fire started, his evidence is of limited value. He testified that after Mr. Norris and Mr. Harris left the car and went into the barn, they came running back, not long after, yelling for the others to get in the car. It was obvious something had happened and when he asked Mr. Norris what he did he replied he lit the barn on fire. According to Mr. Hodgson, Mr. Harris was silent and did not say anything.

[42] This differs from what Mr. Norris said. Mr. Norris said when they came back to the car both he and Mr. Harris admitted to the others they set the fire.

[43] I do not find this difference of much significance. It was obvious when Mr. Norris and Mr. Harris returned to the car events were unfolding fast and in an emotionally charged manner. That there would be differences or confusion between what witnesses recall others saying in that situation and when they said it, is not uncommon and is to be expected.

Conclusion

[44] In the end, it is clear that all four persons in the car that night knew why Mr. Norris was going to the barn. When they arrived at the barn the two who thought this was a bad idea stayed at the car. Mr. Norris went into the barn with one purpose in mind; to burn it. Mr. Harris knew that was the only reason Mr. Norris was entering the barn and he went with him because he had decided to join in. Mr. Harris didn't go in to explore as he said. He went in to carry out the plan with Mr. Norris, and they did.

[45] I am satisfied beyond a reasonable doubt that this is what happened; as such findings of guilt will be made on both charges. However, as noted earlier, at the request of the Crown a conviction will be entered on the break, enter and commit arson charge, and the stand alone charge of arson will be stayed.

Dated at Brantford, Ontario

This 8th day of June, 2015

The Honourable Mr. Justice R.S. Gee